Fair Labor Standards Act FLSA Angela Moore Indiana

Fair Labor Standards Act (FLSA) Angela Moore Indiana State Library Intern July 31, 2013

Presenter Introduction � Rising � Not 2 nd year law student a lawyer � Summer � Former 2 legal intern at ISL librarian at Berne Public Library

Disclaimer � This �I 3 is legal information, not legal advice cannot apply the law to your specific situation

Overview � FLSA � How and relevant Indiana state law they apply to Indiana libraries � Who is covered? � General Requirements � Minimum wage � Overtime pay � Compensatory time (aka “comp time”) � Exemptions � Youth restrictions � Miscellaneous 4

Who is Covered by FLSA? 5

Who is Covered? � Government agencies (e. g. public libraries) have “enterprise coverage” � All employees 6

Who is covered? � Employees � In general, someone who works for you � Defined in 29 USC 203(e) � Not employees: � Independent � Don’t be tricky: tested by “economic reality” � Volunteers � But, contractors of public agencies: 29 USC 203(e)(4) employees cannot volunteer to perform the same services they are employed to do � Because public agencies (e. g. political subdivisions such as public libraries) can have unpaid volunteers, they can have unpaid interns 7

Minimum Wage 8

Minimum Wage � $7. 25 per hour worked � Exemptions for administrative, executive, professional, & computer-related positions � Proposed 9 legislation

Hours Worked � What counts? � Time employee is “suffered” or “permitted” to work � Employer has the duty to stop extra work � Unscheduled time, work from home, etc. are paid � Breaks (including meals) are paid unless: � Relieved of duties, and � Able to use time for own purposes 10

Hours Worked � Training � Paid if one of the following: � During regular working hours � Mandatory � Job-related, or � Employee performs productive work for employer � Employee-initiated worked 11 educational courses are not hours

Proposed Legislation “Fair Minimum Wage Act of 2013” � Identical bills: HR 1010 and S 460 � Referred to committee � Would raise minimum wage to $8. 20 after 90 days � Would create system for yearly changes to minimum wage, 95¢ increases for first 2 years � Will 12 it pass? Image from Microsoft Office Online Clip Art

Overtime 13

Overtime � Employees 18 or older can work any number of hours per day/week � Overtime pay kicks in for hours worked over 40 per week � Not calculated per day � Employer sets day workweek begins � Overtime rate can be no lower than time & ½ � Applies to hourly & salaried employees � Exemptions for administrative, executive, professional, & computer-related positions 14

Compensatory Time � Section � Give � Public 7(o) of FLSA: 29 USC 207(o) additional paid time off instead of overtime pay agencies (e. g. public libraries) � Pursuant to an agreement � You are not required to give comp time instead of overtime pay � No more than 240 accumulated hours � Receive 1. 5 hours comp time per overtime hour 15

Compensatory Time � Example: � Employee works 50 hours in one work week � 10 hours overtime � 2 ways to compensate employee: 16 Pay for 55 hours (40 hours plus 10 hours × 1. 5), or Pay for 40 hours, employee receives 15 hours comp time

Exemptions 17

Exemptions � “To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. ” � Job must be one of the following: � Administrative � Executive � Professional � Computer-related 18 (exception to salaried rule) http: //www. dol. gov/whd/regs/compliance/fairpay/fs 17 a_overview. htm

Administrative Exemption � Salaried � At least $455 per week � Primary duty: � Office work, or � Non-manual work directly related to management or general business operations � Exercises discretion and independent judgment in matters of significance 19 http: //www. dol. gov/whd/regs/compliance/fairpay/fs 17 c_administrative. htm

Executive Exemption � Salaried � At least $455 per week � Primary duty � Managing the whole or a recognized department or subdivision � Regular direction of at least 2 full-time employees (or their equivalent) � Authority to hire/fire, or recommendations given particular weight 20 http: //www. dol. gov/whd/regs/compliance/fairpay/fs 17 b_executive. htm

Professional Exemption � Salaried � At least $455 per week � Primary duty � Perform work requiring advanced knowledge & predominantly intellectual in character � Job requires advanced knowledge � Field of science or learning � Customarily acquired through intellectual instruction (e. g. by getting a degree) 21 http: //www. dol. gov/whd/regs/compliance/fairpay/fs 17 d_professional. htm

Computer-Related Exemption � Requirements � Wage � Salaried at $455 per week or more, OR � Hourly at $27. 63 or more � Skilled � e. g. � Not worker in the computer field systems analyst, programmer, software engineer included: � Computer hardware repair/manufacture � Employees whose work is facilitated by computers 22 http: //www. dol. gov/whd/regs/compliance/fairpay/fs 17 e_computer. htm

Exemptions Recap � Administrative � Executive � Professional � Computer-related � Wage + nature of job � Exempt 23 from overtime pay

Youth Restrictions 24

Youth Restrictions � Under � Very � Ages 14 narrow allowances (e. g. child actors) 14 -15 � FLSA � Age 16 & Age 17 � Indiana � 18 law and above � Not � U. S. considered youth Dept. of Labor’s Child Labor Bulletin 101 http: //www. dol. gov/whd/regs/compliance/childlabor 101. pdf � Indiana 25 Child Labor FAQs: www. in. gov/dol/2398. htm

Youth Restrictions � Ages 14 -15 � Cannot work: � During school hours, before 7 am, or after 7 pm (or 9 pm from June 1 – Labor Day) � Over 3 hours on school days/8 hours on non-school days � Over 18 hours in school weeks/40 hours for non-school � No hazardous jobs � Operating machinery, using ladders, etc. � School hours, days, weeks of worker’s local public school system, even if private-, home-schooled 26 http: //www. dol. gov/whd/regs/compliance/childlabor 101_text. htm

Youth Restrictions - Homeschoolers � Federal law says no working during “school hours” as set by local public school system, Indiana law says can work during “traditional school hours” with proper permission. � Consult 27 your lawyer

Youth Restrictions � Age � 16 – Indiana law May work: � 8 hours per day � 30 hours per week � Until 10: 00 p. m. on nights followed by a school day � With parental permission may work: � 9 hours per day, � Until 12: 00 a. m. on nights NOT followed by a school day, � 40 hours per school week, � And/or 48 hours per non-school week. � With written school permission may work: � After � 7: 30 am and before 3: 30 pm May not work: � More than 6 days per employer's work week � Before 6: 00 am � In hazardous jobs 28 www. in. gov/dol/2398. htm

Youth Restrictions � Age � 17 – Indiana Law May work: 8 hours per school day � 30 hours per week � Until 10: 00 p. m. on nights followed by a school day � � With written parental permission, may work: 9 hours per day � 40 hours per school week � 48 hours per non-school week � until 11: 30 p. m. on nights followed by a school day � or until 1: 00 a. m. on nights followed by a school day, but not on consecutive nights and not more than two school nights per week � � With written school permission may work: � � After 7: 30 am and before 3: 30 pm May not work More than 6 days per employer's work week � Before 6: 00 a. m. on school days � In hazardous jobs � 29 www. in. gov/dol/2398. htm

Youth Restrictions � Breaks � Shift of 6 or more hours � One or two breaks totaling 30 minutes or more � Can be unpaid � Document all breaks � Withdrawn/high school graduates � If over 16, not bound to the hour restrictions/break requirements 30 http: //www. dol. gov/whd/regs/compliance/childlabor 101_text. htm; www. in. gov/dol/2398. htm

Youth Restrictions � Youth Minimum Wage � $4. 25 for first 90 calendar days of employment � $7. 25 after first 90 days/18 th birthday � Cannot displace workers to hire new youths at $4. 25 31

Youth Restrictions � Work permits � Indiana state law � For minors 14 -17 � Required during the summer, too � Can only obtain once hired � Obtained through local accredited school (even if homeschooled) 32

Youth Restrictions � Exceptions to work during school hours: � Work-Study � Governed by Code of Federal Regulations 29 CFR 570. 36 and 29 CFR 570. 37 � Must 33 and Career Exploration be school-administered and school-supervised

Miscellaneous 34

Recordkeeping � Records for each non-exempt worker, no particular form � Keep for at least two years, some things three years: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. � Employee's full name and social security number. Address, including zip code. Birth date, if younger than 19. Sex and occupation. Time and day of week when employee's workweek begins. Hours worked each day. Total hours worked each workweek. Basis on which employee's wages are paid (hourly/weekly/etc. ) Regular hourly pay rate. Total daily or weekly straight-time earnings. Total overtime earnings for the workweek. All additions to or deductions from the employee's wages. Total wages paid each pay period. Date of payment and the pay period covered by the payment. Don’t forget about Indiana Commission on Public Records 35 http: //www. dol. gov/whd/regs/compliance/whdfs 21. pdf; http: //www. in. gov/icpr/index. htm

Nursing Mother Employees � Amendments to FLSA through Affordable Care Act: 29 USC 207 (r) � Reasonable break time each time mother (non-exempt employee) needs to express milk � For �A one year after child’s birth place (cannot be a bathroom) � Shielded from view � Free from intrusion by coworkers or public � Exemption � State if <50 employees and undue hardship law: IC 5 -10 -6 -2 � (For state/political subdivisions) Breaks must be paid, but should coincide with other breaks 36 http: //www. dol. gov/whd/regs/compliance/whdfs 73. htm; http: //www. in. gov/legislative/ic/code/title 5/ar 10/ch 6. html

Mandatory FLSA Posting � “Every employer of employees subject to the Fair Labor Standards Act's minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it. ” � Available at: http: //www. dol. gov/whd/regs/compliance/posters/flsa. htm 37

Resources � US Department of Labor � http: //www. dol. gov/whd/flsa/ � http: //www. dol. gov/compliance/laws/comp-flsa. htm � Hotline: � FLSA 1 -866 -4 USWAGE (1 -866 -487 -9243) for gov’t employers � http: //www. dol. gov/whd/regs/compliance/whdfs 7. pdf � Indiana Department of Labor � http: //www. in. gov/dol/ � FAQs: http: //www. in. gov/dol/2345. htm � Child Labor FAQs: www. in. gov/dol/2398. htm 38

Questions For questions about how the FLSA applies to your library, contact your library’s attorney. 39